Reed v. United States, 80-1058.

CourtCourt of Appeals of Columbia District
Citation452 A.2d 1173
Docket NumberNo. 80-1058.,80-1058.
PartiesDavid R. REED, Appellant, v. UNITED STATES, Appellee.
Decision Date10 November 1982

Public Defender Service, Washington, D.C., was on briefs, for appellant.

Evelyn E. Crawford Queen, Asst. U.S. Atty., with whom Charles F.C. Ruff, U.S. Atty. at the time the brief was filed, John A. Terry, Asst. U.S. Atty. at the time the case was argued, and John R. Fisher, Asst. U.S. Atty., Washington, D.C., were on brief, for appellee.

Before KELLY, NEBEKER, and BEL-SON, Associate Judges.

BELSON, Associate Judge:

Appellant was convicted following a jury trial of second-degree murder while armed, D.C.Code 1981, §§ 22-501, -3202, assault with intent to kill while armed, id. §§ 22-501, -3202, and carrying a pistol without a license, id. § 22-3204. He appeals, asserting that the trial court erred in: (1) curtailing cross-examination of a government witness concerning the witness' prior arrests; (2) permitting the government to impeach its own witnesses with their prior inconsistent statements, and (3) permitting the government to rehabilitate a witness with his prior consistent statements. We hold that the court did not err either in limiting cross-examination of the government witness or in permitting the government to introduce its witness' prior inconsistent statements. We conclude that the government witness' prior consistent statements were inadmissible to rehabilitate the witness, but that the trial court ruled correctly that any error in their admission was harmless. Accordingly, we affirm.

Appellant was convicted of killing David Thurston, Jr., and wounding Matthew Crockett on October 20, 1977, following a dice game in the Brentwood Shopping Center. Crockett and a companion, Andre Noble, shot dice with appellant and others in the parking lot of the shopping center. After they lost all their money in the game, Crockett and Noble left the shopping center with David Thurston, who had not joined the game. They were followed by appellant and several unidentified persons. As David Thurston was entering his car, appellant demanded to check him to see if he had any money. When Thurston refused, appellant shot him and Crockett. Noble fled unhurt.

A short time after the shooting, Noble returned to the scene and drove David Thurston to a hospital where Thurston died. Noble then went to the home of Thurston's family and advised them of the shooting. David Thurston's younger brother, Michael Thurston, joined Noble and the two men returned to the shopping center in David Thurston's car. There they were stopped and questioned by police officers. A sawedoff rifle and a pistol were found in the car, and both men were arrested for illegal possession of firearms.

Following their arrest, Noble and Michael Thurston were questioned by Detective Norman Brooks at the Metropolitan Police Department Homicide Division. In their statements to Detective Brooks, both men denied any knowledge of the weapons found in David Thurston's car. Several hours later, however, Noble stated to Detective William Wood that he and Michael Thurston obtained the weapons after David Thurston was shot, and that they were in search of David Thurston's assailant when they were arrested. Following Noble's statement to Detective Wood acknowledging possession of the weapons, charges against Noble and Michael Thurston were dropped.

Noble and Crockett testified at trial that appellant followed them from the shopping center and shot both David Thurston and Crockett. Both men made out-of-court and in-court identifications of appellant.1

Several days after the shooting, appellant, who was on parole, left the jurisdiction and went to Texas where he lived under an assumed name until his arrest in October 1978.

It was the defense theory that David Thurston and Crockett were shot by Noble. Appellant testified on his own behalf. He stated that as he and his companions were leaving the shopping center after the dice game, they were followed by David Thurston, Noble and Crockett. When Noble pulled a pistol from under his jacket, appellant fled. As he ran, he heard shots. A defense witness testified that he observed appellant being followed by three men as appellant left the shopping center. Two other defense witnesses testified that they heard what one described as shots and the other described as a loud noise at the same time that they saw appellant running away from the shopping center. One of the latter witnesses was appellant's sister.

The government presented evidence that neither of the weapons found in Noble's and Michael Thurston's possession fired the bullets recovered from David Thurston's body.2 The bullets removed from Crockett were discarded by the hospital where he was treated for gunshot wounds; thus it could not be determined if the same weapon was used in the shooting of both men. Evidence was adduced that the size of the bullets removed from Crockett was consistent with their being the same caliber as the bullets recovered from Thurston's body. The murder weapon was not recovered.

I

We address first appellant's contention that the trial court erred in restricting defense cross-examination of Crockett. Crockett had been arrested a total of four times between the date of David Thurston's shooting and the date of appellant's trial. Over appellant's objection the trial court granted the government's motion to preclude cross-examination of Crockett concerning the three arrests with respect to which charges were no longer pending.

Appellant and the government had stipulated to the nature of the charges which had been brought against Crockett and to the reasons the charges were dismissed. A burglary charge was dismissed when the trial court made a finding of no probable cause; a robbery charge was dismissed when the victim refused to prosecute, and a homicide charge was dismissed after the medical examiner ruled that the victim's death was accidental. Appellant contends that the court's ruling violated his Sixth Amendment right to confrontation of witnesses against him. We disagree.

An accused's right to confrontation of the witnesses against him is a fundamental right guaranteed by the Sixth Amendment. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974). Central to this fundamental right is the opportunity to cross-examine the government's witnesses. Id. at 315-16, 94 S.Ct. at 1109-1110; Springer v. United States, D.C.App., 388 A.2d 846, 854 (1978). The exposure of a witness' bias or partiality is an important function of the constitutionally-protected right of cross-examination, and we have recognized that "bias is always a proper subject of cross-examination." Id. at 855 (quoting Hyman v. United States, D.C.App., 342 A.2d 43, 44 (1975)). While an accused's right to cross-examine adverse witnesses is constitutionally protected, it is not without limits. Once there has been cross-examination sufficient to satisfy the requirements of the Sixth Amendment, the trial court has discretion to control the scope and extent of cross-examination. See Smith v. United States, D.C.App., 392 A.2d 990, 991 (1978); Springer v. United States, supra at 856; Flecher v. United States, D.C.App., 358 A.2d 322, cert. denied, 429 U.S. 977, 97 S.Ct. 486, 50 L.Ed.2d 585 (1976).

In Springer v. United States, supra, we set forth the analysis to be employed in determining if a limitation of cross-examination constitutes reversible error in a criminal case:

Where the record reflects a curtailment of a requested line of bias cross-examination in limine, so that the jury is unable properly to perform its fact-finding function in inferring bias from the testimony as a whole, we will assess cross-examination errors by a per se error standard. If, however, the trial court has permitted some cross-examination so that the jury has sufficient information from which to infer bias (should it so choose), this court will evaluate error by application of the harmless constitutional error test of Chapman v. California, supra [386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)]. To hold harmless such error in curtailing constitutionally-protected cross-examination, it must be clear beyond a reasonable doubt ". . . that the defendant would have been convicted without the witness' testimony. . . ."

Where we determine that a degree of cross-examination consistent with the Sixth Amendment has been allowed, our appellate review will focus on the scope of the cross-examination allowed, and the trial court's determination will stand unless an abuse of discretion mandating reversal is shown. [Id. at 856 (emphasis in original) (citations and footnote omitted).]

Application of the above analysis to the facts of the instant case leads to the conclusion that the trial court did not commit error in limiting cross-examination of Matthew Crockett.

First, an error per se standard of review is not applicable. Contrary to appellant's assertion, there was not a complete curtailment of a requested line of cross-examination in limine. The trial court permitted cross-examination with respect to burglary charges then pending against the witness, and appellant's trial counsel also cross-examined Crockett concerning an expectation of favorable treatment by the government in exchange for his testimony against appellant.

Second, we conclude that there was no constitutional requirement that appellant be allowed to cross-examine Crockett concerning the dismissed charges in the complete absence of any showing either that the charges were dismissed because of any initiative on the part of the government, or that Crockett had reason to believe that such was the case. We are unpersuaded by appellant's argument that the dismissal of charges evidenced a relationship between Crockett and the government which would permit Crockett to believe...

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